Administration of Criminal Justice

Civil law is concerned with the relationship between natural and/or legal persons within a community’s jurisdiction. This means that civil law governs obligations that arise as a result of the existing relationship between two parties. These relationships arise either voluntarily, through contract, or by operation of the common law or statute in the law of tort.

Civil court procedures are called claims or actions and are predominantly commenced by the aggrieved claimant who seeks compensation for loss or damage suffered due to the negligence of the other party, the defendant. This negligence constitutes a breach of the obligation that occurs either by virtue of an act or omission. The onus of establishing that damages are payable rests with the claimant and is to be proven to a standard of ‘balance of probabilities’. The purpose of the awarding of damages is restitution, which means that the claimant is to be recompensed to a point that places them back into the position that they would have been in had the defendant not been negligent. Civil law is a creature of the Roman Law.

Criminal law, on the other hand, is concerned with the relationship between individuals and the community itself. This means that criminal law governs the regulation of society by specifying prohibited acts and omissions in the common law and statute.

The Criminal Court procedure is a criminal prosecution that is raised by the Crown Prosecution Service, who are civil servants of the State. Unlike for civil procedures, the purpose of the criminal law is to punish the defendant, and, depending on the level of the crime, this is done by either a fine, imprisonment or a community service order. In accordance with Article 6(2) of the European Convention of Human Rights and Fundamental Freedoms, there is a presumption of innocence until proven guilty. This therefore means that the onus of proving that the defendant is guilty rests with the Crown Prosecution and the standard of proof is the far higher ‘beyond all reasonable doubt’ standard. Within establishing at least a prima facie case, which is the point where the evidence presented will give rise to entitlement for a jury to find the defendant guilty, there will be an acquittal due to there being ‘no case to answer.’

According to Dine and Gobert, there are two ways of classifying a crime. The first is to identify the conceptual and generic components of a crime. This objective approach is then complimented by the subjective analysis of individual crimes and identifying its constituent elements. Both methods are to be utilised together in order to classify crimes effectively.

The former approach was adopted by Glanville Williams, who defined the generic crime as:

‘an act that is capable of being followed by criminal proceedings.’

This definition does however miss the point entirely, whereby there is no mention in this definition of the identification of the act that is capable of constituting a crime. Therefore, the proper way of conceptualising the crime is to identify the motivations that provide insight for society to render the act or omission illegal. This entails the presence of a moral stance that society has adopted. Acts that are controversial on this point will question the relevance of the criminality over morals that are out of date or misguided. John Stuart Mill writes in ‘On Liberty’ of the notion of victimless crimes, whereby acts such as the possession of illegal narcotics and, prior to 1969, the prohibition of homosexual acts are products of a paternal society that affronts the liberty of individuals.

For whatever reason, once the need for illegality is established it is the combination of the existence of a law and the attachment of sanction that will classify the act as crime.

There are three classifications of criminal offence. The first is the summary offence and are the least serious of crimes. An example would be driving without insurance in accordance with the Road Traffic Act 1988. The second classification is that of offences that are triable on indictment alone. These are the most serious crimes and would involve theft or murder. The third category is that of offences that are triable either way and would include theft. These three classifications are triable in different courts. Summary offences are dealt with in the magistrates’ court and indictable offences are heard in the Crown Court. The nature of the way in which an either way crime was committed will determine whether it is summary or triable on indictment.

As well as classifying the crime in terms of its seriousness and the court for which it is triable, another method of identifying how a crime is classified is to look to the relevant statute and determine from the wording whether it is triable summarily, on indictment or both. For either way crimes, two sets of penalties are often specified.

A summary motoring offence By virtue of the fact that this is not a serious offence and is most likely a strict liability, regulatory offence, this summary driving offence will be heard by the Magistrates Court.

The offence of theft

We would have to look to the seriousness of the actual offence committed in order to ascertain how the offence was committed as this is an either-way crime. If this was, for example, an international fraud scam involving millions of pounds sterling, the crime would be triable on indictment and would be heard in the Crown Court. If on the other hand, the theft was that of a mere pounds, this would constitute a summary offence that is triable in the Magistrates Court.

The offence of murder

This crime is extremely serious and is therefore triable on indictment only. The trial will therefore be heard in the Crown Court at first instance.

There are two types of magistrate. The first is the lay magistrate who is not legally trained but will hear cases on a panel of three and will be given legal advice by a lawyer. The second is the professionally trained judge who has the power to hear a case on his own as opposed to being on a panel of three.

The main limitation on powers of the magistrate is that of the extent of sentence that they are allowed to pass.

The justice clerk is the stated qualified lawyer whose role is to give legal advice to the panel of three lay magistrates during the trial proceedings.

The Crown Court

Regardless of whether a defendant pleads guilty to an offence or not, a right exists to appeal to the Crown Court. From the Magistrates Court, this would constitute an appeal against conviction and is a re-analysis of the facts as opposed to the law. Unless the defendant pleaded guilty, there is generally a re-hearing of evidence before the judge and between two and four magistrates. The proceedings are witnessed but there is no jury.

The High Court An offender may make an appeal to the High Court if there is an assertion that the magistrates erred, not on the facts, but on a point of law. The appeal is generally heard by two or more judges together and this would constitute a Divisional Court of the High Court known as the Queen’s Bench Division. This division ma reverse, amend or affirm the decision of the Magistrate’s Court or remit the case to them with instructions to reconsider in light of clarifications of the law that have been held as the outcome of the High Court appeal. As the High Court appeal is always on a point of law, there is no re-hearing as this is associated with the facts alone.

On appeal against conviction, the Crown Court has the ability to vary sentence but can only increase it up to the maximum that is permitted of the Magistrate’s Court. The High Court may reverse, affirm, amend or remit to the Magistrates. In fact, the Court may make any order, concerning the law as it sees fit and is constrained only by precedence and the sentencing limitations of the High Court in general. The House of Lords will hear an appeal where the High Court deems the point of law in question to be of general public importance. The powers here are only in conjunction with precedence but a larger panel of law lords than those of the previous leading case will provide the House of Lords to overturn the old law. The High Court or the House of Lords itself must also give leave (permission) before an appeal can be heard by the House of Lords. The Constitutional Reform Act 2003 has provided for the Creation of the Supreme Court of England and Wales, which will take over the judicial role of the House of Lords thereby physically separating the functions of the House of Lords as a legislative and judicial power, albeit in different departments. This statute is yet to come into force.

If the defendant cannot afford a lawyer, one will be provided for them and this is a public funded assistance that is provided in accordance with s 58(1) of PACE 1984.

The Independent Police Complaints Commission

This organisation (IPCC) came into being on 1st April 2004, which replaced the Police Complaints Authority (PCA) and forms part of the Police Reform Act 2002. The aim of the IPCC is to instil a greater national confidence in the police force. Therefore, the role of the IPCC is the independent investigation, management and supervision of compliant investigations . It is stated in the home page to this organisation that the workload will not be great in the initial stages as only very few serious cases are eligible for independent investigation and that the large majority of cases will be investigated by the Professional Standards Departments under the IPCC. Further to the changes that are to occur, Special Constables and police staff are now under the jurisdiction of the IPCC and are answerable to them.

Pre-trial Procedures

The parameters for arrest

In accordance with the Police and Criminal Evidence Act (PACE) 1984, s 25(1) states that the constable must have reasonable grounds for the suspecting that an offence is being committed or attempted by the ‘relevant person’ and that, in his belief the servicing of a summons is not practical due to the circumstances of the arrest. The relevant person is described under PACE, s 25(2) as the individual for whom the constable has reasonable grounds to suspect the committal or at least the attempt of the crime was carried out by them. Further arrest conditions states that the name of the relevant person is unknown and is not readily ascertainable , there are doubts as to their real name , there is no real evidence of a conclusive address and arrest is deemed necessary by the constable for the purpose of preventing physical harm or injury or damage to property , public decency or obstruction of the highway.

It is clear that the provisions are very much geared towards the favour of the opinion of the constable. The reasonable belief of committal of an offence or attempt arose as a result of the identification of a stolen vehicle which contained traffic cones. The car is being driven by Lynn who was recognised as having been arrested on prior charges of theft of traffic cones and warning signs. These observations are ample to satisfy the conditions for arrest as set out under s 25(1) PACE 1984. Lynn, as the driver, is clearly the relevant person under s 25(2) PACE 1984.

The parameters for the search

Entry and search after arrest are dealt with in s 18 of the PACE, 1984. Again the constable is given the discretion of ascertaining whether there are reasonable grounds for entering the premises that are occupied or controlled by a person under arrest for an arrestable offence. The reasonable grounds must be that there is suspicion of the presence of items at the premises that are not subject to legal privilege and relate the offence at hand or another connected offence .

Here the suspicion was as a result of PC Khan’s knowledge of the suspect that educated PC Tate into suspecting that the flat would contain more stolen items, which constitutes reasonable grounds.

The parameters for seizure of articles alleged to have been stolen

S 18(2) of PACE 1984 also states that a constable has the permission to seize and retain anything for which the search is conducted under s 18(1). This clearly wide police power that is only constrained by the fact that the items seized have to have been evidence of the crime that is not subject to legal privilege. This is clearly the case for the myriad of cones and signs that were found in the premises.

Who can act as a custody officer, his duties in relation to suspects brought in for questioning.

In accordance with s 36(2) of PACE, 1984, a custody officer is someone who is appointed by the chief officer of the police for the jurisdiction of the police station or by another officer who has been delegated the power of appointment by the chief officer himself . The custody officer must also be at least of the rank of sergeant but where he is absent an officer of any rank may perform the role but this does not include any officer who is involved in the investigation of the offence . This means that PC Tate and PC Khan may not take on this role where Lynn is concerned.

The duties of the custody officer before charge are set out under s 37 of the PACE 1984. Where a person is arrested for an offence without a warrant , it is the job of the custody officer to ascertain whether he has sufficient evidence before him to carry on with a charge . This enables the custody officer to detain the suspect in order to ascertain whether there is enough evidence for the charge. If there is not enough evidence, the person arrested is then released without bail but if the officer has reasonable grounds for believing that detention without charge is necessary in order to preserve evidence for the offence for which the suspect is under arrest, he may detain the suspect . If the officer believes that he has enough evidence to charge, he may do so and is only required to take this action subject to his own reasonable belief of enough evidence .

Rights to take samples of hair, saliva and blood during detention

According to s 58 of the Criminal Justice and Public Order Act 1994, sample taking is split up into two categories, namely intimate and non-intimate.

An intimate sample consists of blood, semen, fluid, urine, saliva, pubic hair or a non-oral swab. All of the above, excepting urine are only by law to be taken by a doctor, registered nurse or registered health professional. In addition, such sampling may only ensue if an officer of at least the rank of inspector authorises it and the suspect consents. The hair sample, as a non-intimate sample, requires only the consent of the suspect, Lynn and no doctor needs to be present unless the sample is a pubic hair.

Steps that the police must take to allow Lynn access to legal advice. Implications for a future trial where access to legal advice is denied.

Access to legal advice is provided under s 58 of PACE. If arrested, a person in detention may privately consult a solicitor at any time and is entitled to receive this legal advice as soon as is reasonably practicable after making the initial request or at least within 36 hours . Section 58(6) states that a delay is only permitted where the person arrested is held for a serious arrestable offence and that an officer of at least the rank of superintendent has authorised it and the authorisation of delay must be given the weight of having reasonable grounds , namely that, at the time of the request for legal advice that exercise of the right would lead to interference with or harm to evidence connected with the serious offence , will lead to the alerting of others involved or will hinder the recovery of property obtained due to the offence . S 58(8A) also states that the delay of providing legal advice is justified where there is a reasonable ground for belief that the criminal conduct has benefited the person detained and that recovery of the property that is the benefit will be hindered by the provision of legal advice .

Any failure to provide legal advice that does not fall under the heading of PACE 1984 will inevitably result in a breach of Article 6(2) of the European Convention on Fundamental Rights and Freedoms, which states that everyone has the right to a fair trial. An unfair trial would not be possible and would have to be halted immediately.

The time limits on detention of a suspect for questioning. Implications of this nature if Lynn had been arrested on suspicion of causing the owner of the stolen car life-threatening injuries when she took the vehicle.

S 41(1) of PACE sets out the time limits on the period of detention without charge. This stands at 24 hours. Provision for the extension of this period is provided for under s 42 where there can be authorisation for extension of the detention period. This may occur where a police officer of the rank of superintendent or above believes that the crime committed was a serious arrestable offence and the investigation is being carried out expertly and diligently . This extension may be for a period of up to 36 hours from the relevant date. The seriousness of causing life threatening injuries would in this instance be enough to allow the superintendent to have belief of reasonable grounds that extension of the detention period is required.

Procedures that the police must adopt for witness identification using video

The PACE code of practice must be adhered to in order to ensure justice. The latest version of this code dates from the year 1995 and state the procedures and rules for all aspects of the investigation. The key words within the code are ‘fairness’ and ‘openness’. With regard to witness identification using video, Code D of the 1995 Code of Practice which is the identification of suspects by the witness using a video under paragraph 3.5 of the Code. This paragraph states that Annex A of the Code D is to be applied as the correct procedure. Firstly the responsibility of obtaining the video is the responsibility of an identification officer . The set of images in the video must contain the suspect and at least eight other individuals who resemble one another in terms of, among other things, race, gender, age and height . The video must also show that the individuals are carrying out the same sequence of movements . If however this is not practicable, reasons for this must be provided . Everyone in the video is to be identified by a number , and officers must have their badges concealed should they appear on the film . Further to this, the suspect lawyer or an appropriate adult must have an opportunity to see the video , and the suspect is to be made aware of the details of the description that has identified him .

The procedure for viewing is that only one viewer is permitted at a time and there is also to be no discussion of the contents of the video with the witness . The witness is required to see the images at least twice and will then be asked if they can identify the suspect by stating their number . At no point is the witness to be directed to make a particular decision .

These images must be kept secure and a record of who has seen it and conduct of the video identification is to be maintained .

When a suspect can be fingerprinted without his consent.

Fingerprints can be collected from anyone over ten years of age without consent and without a court order where any of the following circumstances have occurred in accordance with the original PACE law and s 9 of the Criminal Justice and Police Act 2001 which amends s 61 of PACE 1984 the following are applicable:

Where the suspect has been detained after arrest or charged or informed that they will be prosecuted for a recordable offence and the fingerprints have not already been taken.

Where the fingerprints were taken before but were not of a complete set or were not to a high standard of quality

Where there has been conviction of a recordable offence or caution and the suspect is detained under the Crime and Disorder Act 1998 for a recordable offence.

Where the suspect receives bail and answers this or where the police officer has reasonable belief that the original fingerprints were of another individual or where the suspect claims to be someone else.

At first instance the case can only be heard by either the Magistrates Court or the Crown Court. The former may hear the less serious summary offences and the latter may hear the more serious offences that are triable by indictment. In this current case the charge at hand is that of burglary which, by virtue of s 9(3) of the Theft Act, is deemed to be an indictable offence and can therefore only be heard in the Crown Court. Even if the act of threatening violence is not satisfied as a perpetration of grievous bodily harm, the lesser crime of theft is stated under s 7 of the 1968 Act as being indictable.

As an either way offence, the magistrates have the ability to decide which court is more suitable for the offender, which straight away means that there will be an immediate decision as to the maximum penalty due to restrictions on sentencing powers between the magistrates for summary offences and the Crown Court for indictable offences.

When deciding whether to go to trial to either the magistrates or the Crown Court, the nature of the offence and the level of seriousness will be taken into consideration. This will however only occur where the defendant states that they are not guilty or they refuse to plea ‘plea before venue’. The decision as to which court is the ‘venue’ or ‘mode of trial’ part of proceedings. Here the magistrates consider the seriousness of the offence, and this is serious as it will have repercussions on the expected maximum sentence due to the vast difference in sentencing powers between the two courts. Other circumstances will be taken into consideration as are seen fit. In the current case the previous convictions would be taken into account in deciding that the lenient sentencing powers of the magistrates will prove to be inadequate for this repeat offender.

As stated above, following the summons to make a first appearance to the magistrates’ court and this is where the ‘plea before venue’ will take place and then the ‘mode of trial’ is decided. In accordance with the Criminal Disorder Act 1998, when dealing with an offence that is triable only by indictment, the first court appearance is at the magistrates’ court and then MUST at this first hearing be sent straight to the Crown Court for trial. Here is where the magistrates will set the date of the first Crown Court hearing. In the meantime, the prosecution will serve the details of the case against the defendant, which will also include witness statements. It is also possible, where the defendant believes that the case against him is weak, to apply to the Crown Court Judge for the charge to be dismissed. The outcome of this rests with the responsibility of the judge. If there is however a case to answer, the case will go to trial.

However, prior to this there will be a plea and directions hearing (PDH) and if the plea is that of not guilty, the proceedings will continue to the next stage, which is the trial itself and will be in the form of trial by judge and jury.

The magistrate’s court trials do not have a jury but will hear the case as a panel of three lay magistrates who are not legally trained. Legal advice is therefore provided in the form of a Law Clerk who is a qualified solicitor. The other option is for the magistrate to be a District Judge who is actually legally trained. Unlike the lay magistrates, the District Judge will hear the case alone and, in order to secure a conviction he must be persuaded prima facie beyond all reasonable doubt that the case has been proven in favour of the prosecution.

In contrast, the Crown Court trial is heard by a legally qualified judge and jury. It is the job of the jury and not the judge to decide the outcome of the case based on the facts. The role of the judge is to direct the jury on the law and here he will inform the jury of the requirement for a prima facie case beyond all reasonable doubt in order to secure the conviction. Due to the important role of the jury, issues of admissible evidence will be scrutinised by the judge without the presence of the jury. At the end of the hearing the judge will direct the jury on the applicable law that must be utilised in determining the outcome of the case.

How proceedings in the Youth Court differ from those in the Magistrate’s Court for adults.

The Youth Court is a magistrate’s court for young people and is recognised as such in accordance with s 45 of the Children and Young Persons Act 1933 (as amended) and the Magistrate Court (Children and Young Persons) Rules 1992. Parents of offenders under the age of 16 are expected to attend trial and for offenders that are 16 and 17 years old, the requirement for parental attendance can occur under s 34A of the 1933 Act. The chid will be explained the charge and its nature in simple terms under r 6 of the 1992 Rules, that are suitable for the child’s age group. Where the child then enters the plea under r 7 of the 1992 Rule, every effort ms made to ensure that the plea is unqualified as was done in the case of R v Blandford Justices ex p G (infant) .

During the trial, where the child is unrepresented the parent is allowed to assist the child in cross-examination. Where clear confessions are made by the child the court will ask further questions to ensure that the child is actually making a confession. This is done for the purpose of clarity and is carried out by an experienced chairman or legal advisor as was done in the case of Simms v Moore .

Where it is decided by the magistrates that there is a case to answer the child is told under r 9 of the 1992 Rules that he or she must address the court or give evidence and any that any failure to do so will result in inferences being drawn from this silence as stated under s 35 of the Criminal Justice and Public Order Act 1994.

Definition of primary disclosure

Which documents must be handed over by the prosecution to the defence?

Primary Disclosure is the obligation to disclose materials to the other side. In terms of the old law under Part 5 of the Criminal Procedure and Investigations Act 1996 (CPIA), there was a duty to disclose all documents that:

“In the prosecutor’s opinion might undermine the case against the accused ”

The new rules, in accordance with s 32 of the Criminal Justice Act 2003, have replaced this overly objective stance and there is now an objective notion of what:

“Might reasonably be considered capable of undermining the case against the accused.”

Further to this, the primary disclosure obligation applies not only to documentation but to material also which:

“Might reasonably be considered capable (of)…assisting the case for the accused.”

The disclosure obligations of the defence

The defence must produce a defence statement to the prosecution in accordance with s 5(5) of the CIPA 1996. However, further to this, a co-accused or the court may direct that the said co-accused be given access to the defence statement

The defence statement must contain the nature of the offence in general terms and matters with which the defendant takes issue. There must also be a statement of the nature of the defence, including matters of fact and points of law that the defence intends to utilise and why. This would also include complaints regarding the admissibility of evidence and the authority for this. The statement must also include an alibi notice and the date of birth of supporting witnesses. The time limit for the submission of the defence statement is 14 days after the initial primary disclosure of the prosecution. Where a defence statement is presented prior to the commencement of the 14 day period, a further updated statement falls due or an official statement of unchanged status must be submitted to the prosecution.

How non-sensitive unused material is dealt with during the file preparation process.

The Crown Prosecution Service is duty bound to disclose to the defence any unused evidence. The CIPA 1996 has created the above mentioned subjective duty to make this primary disclosure of all previously undisclosed material which, in the prosecution’s view, damages the case for the defence. This same obligation is now objectively assessed as shown above under s 32 of the CJA 2003. Following the release of the defence statement the prosecution must then make a secondary disclosure of all previously undisclosed material that are reasonably expected to assist the case for the defence. Failure to do this will result in a breach of Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms, which provides for the right to a fair trial.

Un-used non-sensitive material is disclosed in the form of a schedule of unused, non-sensitive material by the prosecutor to the defence during the process of secondary disclosure as soon as is reasonably practicable after the plea of not guilty is entered or within seven days of a committal taking place under the CIPA 1996. This takes place at this time in the exchanges of disclosure documents in the file preparation process as it follows the prosecution’s scrutiny of the defence statement and allows the prosecution to re-consider any undisclosed material, which is then assessed objectively using the above stated test under s 32 of the CJA 2003, which is that the evidence might reasonably be considered capable of assisting the case for the accused.

Principles of Criminal Liability

The meaning of intention

Intention constitutes the mens rea or mental element of the criminal act that is represented by the intention of the assailant. There are several ways of constructing this depending on the requirements for satisfaction of the crime. In general intention means that there requires foresight of the consequences as opposed to a direct desire for the specific outcome . In Moloney intention was constituted by first ascertaining whether the crime was a natural consequence of the act of the defendant and also, whether such a consequence was foreseen by the defendant. This was worked in the case of R v Hancock and Shankland where Lord Scarman declared that for a crime such as murder, mens rea could not be constituted from mere foresight but that specific intent to kill or inflict serious bodily harm was the only true construction. Further to this, in order to ascertain intention, the probability of the result occurring has to also be taken into consideration. This was all tied together in R v Niedrick where Lord Lane CJ stated that the greater the probability of an outcome, the more likely the consequence is foreseen, ergo, the greater the likelihood of the intent. This connection of the constituent steps to ascertain intent have been upheld in R v Woolin .

The intention of John Kerr and the meaning of recklessness

It is crucial to understand that the question is asking whether there was an intention to endanger the life of Bess Monk. From a subjective point of view, it is clear from the interview that, despite John’s ambiguous answers, he states that the fall down the stairs was an accident. The determination of intention will be ascertained by the assessment method of recklessness as either subjective or objective. However before delving into this it is important to note that recklessness itself is having regard to the consequences of an act which the assailant either disregards or is unaware of.

The ‘subjective recklessness’ construction derives from the judgement in R v Cunningham where Byrne J stated that the word ‘maliciously’, which is also found in s 20 of the Offences Against the Person Act 1961 includes a foresight of the consequence that occurred or intended for it to occur. His intention was clearly therefore, only to push Miss Monk. He therefore did not intend to endanger her life in subjective terms.

If however mens rea were to be assessed as ‘objective recklessness’, as in R v Caldwell it will become clear that John ought to have reasonably known that the push would result in a fall down the stairs and, knowing that there was a glass window at that location, ought to have been aware of the risks, as was the summation of Lord Diplock in the above case. This was affirmed and expanded upon in R v Lawrence where Lord Diplock also stated that there is intent where no though is given to the imminent risk. John Kerr therefore acted with gross recklessness and the intention to endanger life is construable.

The question therefore is, which definition of recklessness and therefore, which construction of mens rea is adoptable in this case? The recent case law would show that the Cunningham construction is the one that is in better keeping with Human Rights Law, in particular Article 6(2) of the ECHR, which provides for the right to a free trial. The presumption of innocence therefore goes hand in hand with this. It would not be the job of John to prove his innocence by having to explain what went on in his head at the time of the act. He need only state that he did not intend to endanger life and it will be up to the prosecution to bring in prima facie proof of the contrary beyond all reasonable doubt.

Offences Against the Person Act 1861

S 20 of the Offences Against the Person Act states that assault occurs where there is the allegation of infliction of grievous bodily harm or a wounding. The actus reus is proven by the presence of an assault. Here, intention is established whereby the prosecution would have to prove either that the defendant intended or actually foresaw that the act would cause harm but this ability to foresee harm need only be of a minor character and not of the extent of the true outcome.

This therefore means that while John Kerr did push Bess Monk and must have foreseen some harm, the fact hat he did not foresee her crashing through the window is irrelevant and he is therefore guilty of the offence under s 20 of the 1861 Act.

Criminal Damage

Criminal Damage in accordance with s 1(1) of the Criminal Damage Act 1971 is where a person who, without lawful excuse, destroys or damages any property belonging to another thus intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged. This actus reus is satisfied as John Kerr’s actions directly led to the destruction of a window that fits the profile of the property under s 1(1) of the 1971 Act.

The question now is whether this is Criminal Damage in the basic or aggravated form?

The damage in question is to the window and, from the facts, it will have to be established that John Kerr was reckless so as to formulate the adequate mens rea. In R v Steer it was contended that the aim of firing shots at a house with an automatic rifle constituted the recklessness as to the clear disregard for the endangerment to life under s 1(2) of the 1971 Act and that the destruction to the property was the cause of the danger to life.

John Kerr therefore has the essential mens rea of the aggravated form of Criminal Damage as he was reckless as to the endangerment of the life of Bess Monk and this was the cause of the broken glass.

Conspiracy is described under s 12 of the Criminal Justice Act 1987 as:

“If a person agrees with any other person or persons that a course of conduct shall be pursued; and (b) that course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement of the agreement is carried out in accordance with their intentions, the fact that it will do so shall not preclude a charge of conspiracy to defraud being brought against any of them in respect of the agreement.”

The facts show that there is clear agreement as to the conduct engaged in. At the bowling alley the rolling of bowling bowls through the café area, coupled with abuse at the customers and communal laughing is the essence of mutual agreement and encouragement to behave in this way. The throwing of sweets at customers as a group is indicative of an agreement to act in a similar manner towards others and, as stated in the case of Director of Public Prosecutions v Doot there need not be writing to the effect of such an agreement.

Further to this the agreement is clearly with the fellow human conspirators due to the implied mutual consent through laughing and encouragement. The facts also appear to show that the upturning of the popcorn stand was a mutual agreement of action among the group. The fact that there is a group of four boys means that there are identifiable conspirators although case law does not even require that they be identified .

It is clear that each member of the group are guilty of conspiracy in accordance with s 12 of the Criminal Justice Act 1987.

Voluntary ingestion of drugs is decided under case law to not constitute a defence but may have an effect on the mens rea. This is clearly established in the case of Director of Public Prosecutions v Majewski . Here Lord Elwyn-Jones LC stated at p 499 that:

“the law is plain beyond all question that in cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only, when it is available at all, have the effect of reducing the crime from murder to manslaughter.”

The judge also stated that, in relation to assault cases, the mens rea is unaffected as it had been established in cases such as R v Vienna that recklessness satisfies the mens rea for assault and this recklessness, per se, is unaffected by intoxication by comparison to the malicious intent that is required for murder.

The fact of drug taking therefore has no affect on this assault but, had Bess Monk died, the intoxication would have aided to reduce the mens rea to that which is satisfactory for manslaughter. 

All of these verbs are integral to the actus reus of accessory under s 8 of the Accessories and Abettors Act 1861 as well as s 36 of the Criminal Justice Act 1972.

Aiding means to help or assist in the commission of a crime. Abetting is the instigation or the encouragement of the commission of the offence. Counselling is the action of advising or encouraging of another and procuring is the nature of ‘causing to be committed’. This final verb is the most complicated of the four and will be explored in a little more detail below.

In Attorney-General’s Reference Lord Widgery CJ stated that:

“You cannot procure an offence unless there is a causal link between what you do and the commission of the offence, and here we are told that in consequence of the addition of this alcohol the driver, when he drove home, drove with an excess quantity of alcohol in his body.”

It was therefore clear that the offence in this case has been procured as the action of the offence was directly linked to the actions of the defendant.

The facts point to the criminal liability of Dave for abetting in the crime of burglary. Firstly, in accordance with the requirements of s 8 of the Accessories and Abettors Act 1861 the first requirement is satisfied as an offence was committed under s 9(1) of the Theft Act 1968 and there is also scope for the requisite ‘grievous bodily harm’ that is necessary for burglary under s 9(2) of the Act.

As regards the second part of either aiding, abetting, counselling or procuring, it is not necessary to examine all of these in detail. The actus reus is clearly there as there was agreement that Pete should steal money. With regard to the mens rea, there needs to be, in addition to the act furthering the commission of the crime, there needs to be intent to the furthering of the commission of the crime or knowledge of such an effect. This is established for Dave who had knowledge that the aggravation of the theft through violence would have the effect of furthering the commission of the crime.

In this instance, there remains the furthering of the commission of the crime through the act of aiding and abetting but, in contrast to the above, there is no intent or knowledge of furthering of the crime of aggravated burglary in accordance with s 10 of the Theft Act 1968 or even murder. This is especially true for the latter as Dave had absolutely no ‘malicious intent’ and his mens rea cannot be elevated beyond that of burglary.

Offences Against Persons and Property

The nature of constructive manslaughter

This offence is the result of death that occurs as the outcome of another ‘unlawful act’ of which both the actus reus and the mens rea require to be proven. Further to this, the unlawful act must also pose a danger or harm. 

Mens re and actus reus of an unlawful act

In the case of R v Lamb the lack of knowledge with regard to the mechanism on a gun barrel resulted in the shot of bullet that killed the victim. The Court of Appeal found that the pulling of the trigger itself, minus the bullet, did not amount to an ‘unlawful act’ manslaughter. Further to this, the mens rea was also not established as no unlawful act with regard to the pulling of the trigger was intended.

The unlawful act must pose a danger or harm

It was held by Edmund Davies J in R v Church that unlawful act manslaughter must be constituted by an unlawful act that any sober or reasonable person would recognise as subjecting the victim to the risk of physical harm and that this harm need not be serious. This was upheld by Lord Hope of Craighead in Attorney-General’s Reference .

Given the above two essential elements of the constructive manslaughter, it is clear that Kim committed the unlawful act of battery, which is the application of unlawful, physical force was committed when she pushed Nadia. The mens rea was constituted as Kim clearly intended to apply this unlawful force.

The question however is whether the fact of Nadia’s disabilities actually broke the chain of causation? This cannot be so as it has long been established that you must take your victim as you find him. This is also upheld in the case of R v Dawson where it was held that shock could amount to the necessary threat of physical harm that would be needed to constitute the unlawful act. The fact that the defendant had a bad heart that resulted in the heart attack and subsequent death did not break the chain of causation. The same can be said for Nadia, who was disabled and consequently less accomplished in the art of staying upright when pushed.

Kim has therefore satisfied the requirements for committing unlawful act manslaughter.

The question now is whether the intention to commit the unlawful act that carries the objectively assessed threat of harm needs to actually be directed at the victim.

Lord Hope of Craighead stated in the case of Attorney-General’s Reference that:

“it is enough that the original unlawful act and dangerous act, to which the required mental state is related, and the eventual death of the victim are both part of the same sequence of events. ”

This therefore means that the continued sequence of events that starts with an intended unlawful act, as defined above, and ends in a death, are enough to constitute unlawful act manslaughter. The case followed R v Mitchell which, incidentally, is in point with the current situation with Kim. This involved the appellant hitting a man who fell on an old lady who then died of a pulmonary embolism due to the injury of the broken leg that was sustained in the fall. For the reasons stated above, the Court of Appeal held that this amounted to constructive manslaughter and, in following the reasoning of this case and that of Attorney-General’s Reference .

Kim is therefore also guilty of constructive manslaughter in this case.

As stated above in (a), the case of R v Dawson conclusively establishes that shock also falls under the umbrella term of ‘physical harm’ of which there requires to be a risk that is recognised by a reasonable person in the intentional perpetration of the unlawful act. Further to this, as stated in (b) the unlawful act need not be directed at the victim but instead requires to only be part of the same sequence of events. In other words, the unlawful and dangerous act requires to have caused the death.

The problem in this scenario with Kim is that the battery itself did not directly cause the death. In case law, deaths that occurred to victims where the unlawful act was directed at someone else were nevertheless directly connected with the physical proceeds of the original unlawful act. This includes the throwing of a live being into water, pushing one person who then falls into another, causing shock that results in a heart attack and stabbing a pregnant woman whose baby is born live but dies of the injuries.

There is however case law that establishes the principle that where there is an intervening act, the original unlawful act cannot be deemed to have caused the death. This happened in R v Dalby where a man supplied another man with drugs who then voluntarily ingested them, thus causing death. At p 429 C in the judgement, Waller LJ stated that the death itself could not have been considered as inevitable. This is the same for the current case with Kim since the act of running into a window and severing an artery was not an inevitable result of Kim pushing Nadia.

Kim is therefore not guilty of constructive manslaughter against Toby.

explain more about the chain of causation

In the case of R v White , Bray J reveals that despite the fact that both the mens rea for murder exists, if the death is not caused by the defendant, but by some other wholly external factor, there can be no conviction for murder and only the actus reus for attempted murder is satisfied. In this case a woman was found dead next to a drink that had been laced with cyanide. However, the post-mortem revealed that she had not died of poisoning but had instead suffered a massive heart failure. The appellant’s conviction of attempted murder was dutifully upheld.

This case is in point with that of the current scenario with Sonia and by following the ratio decidendi of this case, she is therefore guilty of the attempted murder of Manjit only.

Lord Pearson stated in Mohan v R that where the facts clearly point to equal contribution to the act of grievous bodily harm which constituted a prearranged plan to strike the fatal blow, there can be no doubt that both possess the mens rea for murder:

“It is impossible on the facts of this case to contend that the fatal blow was outside the scope of the common intention. The two appellants were attacking he same man at the same time… ”

In this case, the actual perpetrator of the fatal blow was not conclusive but this was held by the judge to be irrelevant as the clear act of equal aiding and abetting distributed blame among both appellants. This case can be distinguished from R v Lane where there had been no evidence to conclude who had struck the fatal blow or when. The clear requirement is therefore to establish who the attackers were, whether they possessed the mens rea to commit grievous bodily harm (which satisfies the mens rea for murder), and that they were acting with equal contribution to a pre-arranged plan. This is clearly the case for Byron and Greg who each stabbed Graham in separate parts of the body, thus inflicting grievous bodily harm.

By following Mohan v R it is clearly established that Byron and Greg are both guilty of the murder of Graham. The chain of causation is not broken as the joint acts of each therefore contribute to the equal contribution to the single act of murder.

The question to ask is whether, ‘but for’ (sina qua non) the action of the defendant, the death would not have occurred. An example of this question being asked is found in the early case of R v Hensler which involved the question of whether ‘but for’ the deception, would the victim have parted with his or her cash and this case also shows that this requirement is not a condition that fully satisfies the establishment of the crime.

It is also necessary to ascertain whether the act is the ‘legal or proximate cause’ of the death. Therefore if injuries sustained could not have been avoided regardless of the nature of the defendant’s driving, the legal or proximate cause of death cannot be that of the defendant’s driving .

In the current case the question to ask, therefore, is whether the poisoning was actually the legal or proximate cause of death. This would mean, did the poisoning affect the husband’s ability to drive that resulted in the accident? If this is the case, Hannah is guilty of murder. If this is not the case, Hannah would be guilty of attempted murder for the same reasons under part (a).

Indicent 1 – The Leisure Club Car Park

Offences committed by Kath

Kath tried car doors. S 1 of the Criminal Attempts Act 1981 defines the offence of criminal attempt as the doing of an act that is more than mere preparation for the commission of the offence. This was discussed in R v Gullefer where the Court of Appeal concluded that it would be necessary to establish that the appellant had actually embarked on the offence. This is made more than clear for Kath by her act of trying car doors.

Kath smashed the window of the Varis. This constitutes Criminal Damage in accordance with s 1(1) of the Criminal Damage Act, which exactly describes the act committed by Kath and states that:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

For completeness, damage is defined as reduction in the value or usefulness of the property , property is defined under s 10(1) of the 1971 Act and s 10(2) defines the notion of ‘belonging to another’. Kath knew that the Yaris was not hers and therefore cannot argue this as a defence to dismantle the otherwise satisfied mens rea.

Kath kept watch for Logan. S 8 of the Accessories and Abettors Act 1861 states that those who aid and abet, counsel or procure an indictable offence shall be tried as a principle offender. There are three requirements which are that, firstly, an offence has to have been committed, which in this case is theft by Logan. Secondly, the defendant acted in accordance with s 8 of the 1861 Act, which is also constituted by Kath keeping watch and is, in case law, also satisfied by passive encouragement and thirdly, that there was intent to further the commission of the offence.

Offences committed by Logan

Logan tried car doors. Logan is therefore guilty of Criminal Attempt of theft for the same reasons as Kath.

Logan kept watch for Kath and he is therefore a principle offender of Criminal Damage for the same reasons as Kath is to be regarded as a principle offender of theft.

Logan levered open the boot of the Astra and, for the same reasons stated above, this also constitutes criminal damage as per s 1(1) of the Criminal Damage Act 1971.

Logan reached through the window of the Varis and removed the CD player. He also took the laptop and the DVD player. S 9(4) of the Theft Act 1968 creates the offence of burglary of a vehicle as they would do for the burglary of a building under ss 9(1), (2) and (3) of the 1968 Act. S 1(1) of the 1968 Act states that the two elements of mens rea are dishonesty and the intent to permanently deprive . Both of these are satisfied. The latter is clear from the summoning of the unidentified person to take the items away and the former, although somewhat frustrated by the finding in R v Ghosh is obvious given the violent mode of accessing the items. The actus reus is also satisfied, which is the appropriation of property which belongs to another .

Offences committed by the unidentified man

The unidentified man took the stolen items away. It is unclear whether the unidentified man possesses the mens rea for Theft in accordance with 1(1) of the 1968 Act. Dishonesty is not proven given that he might not be aware of the fact that the goods are stolen. He has however almost satisfied the actus reus in accordance with ss 3, 4 and 5 of the 1968 Act. Here, the only difference between Logan and the unidentified man is the fact that the latter did not steal the goods but s 3(1) of the Act stipulates that appropriation includes coming by the property whether:

“(innocently or not), without stealing it…later assumption of a right to it by keeping or dealing with it as owner.”

While this action is crystal clear in Logan’s case, the unidentified man will not be deemed to have assumed a right to the property if he gives it back and therefore dis-applies himself from the above definition of appropriation.

Incident 2 – The Muchcheapa Supermarket

Offences committed by Kath

Kath swapped the labels on the frozen pizzas. This constitutes deception by obtaining a pecuniary advantage under s 16 of the Theft Act 1968. This advantage is the reduced price of the pizzas. All the elements of deception are present in that the causal link between the deception and the prohibited act is the operative aim of an unauthorised discount, which constitutes the deliberately untrue statement that is clearly constituted by dishonesty. As the pizzas were dropped, for the reasons set out above, the requirements for criminal attempt are satisfied as the crime was physically embarked upon.

Kath hid the bottles of Lambrusco wine behind a freezer. This too constitutes the criminal attempt of theft since, in addition to the reasons set out under (a), the act of hiding the bottles constitutes embarking on the physical act of theft

Offences committed by Logan

Logan helped Kath with the wrongly priced pizzas and for the reasons specified under part (a), did aid and abet in accordance with s 8 of the 1861 Act and is therefore to be treated as a principle in the crime of deception.

Logan also intended to come back and steal the wine and, as Criminal Attempt is an indictable offence under s 1 of the 1981 Act, Logan, by aiding and abetting is therefore also a principle offender of attempted theft.

Incident 3 – The One for All Wine Bar

Logan assaulted Mac. The actus reus of assault is that the victim anticipated the immediate, unlawful application of force, which in this instance is irrefutable as Mac suffered a broken nose. Lord Ackner established in R v Savage, Director of Public Prosecutions v Parmenter that for a successful finding of guilt for the infliction of grievous bodily harm or a wounding, in accordance with s 20 of the 1861 Act, the prosecution would have to prove either that the defendant intended or actually foresaw that the act would cause harm but that this ability to foresee harm need only be of a minor character and not of the extent of the true outcome. Logan’s Act, due to the breaking of the skin that is akin to a broken nose and, perhaps with the cracked skull satisfies the requirements for wounding under s 20 of the 1861 Act. This is a favourable outcome as the confession that Logan ‘saw red’ brings into question the notion that this was a wounding with intent under s 18 of the 1961 Act, which is not satisfied by mere recklessness.

Logan is therefore guilty of assault by wounding in accordance with s 20 of the 1861 Act.